Ask a Pot Lawyer: Can I Make a Weed Ad?

You Can Make a Pot Commercial, But There Are Hoops to Jump Through

YES, YOU CAN definitely make a pot commercial. Before you start, though, you should study up on the rules for pot commercials and pot ads in general. You should also note that distribution of your ad might be limited, depending on your approach. I’ll explain.

Back when Measure 91 passed, you and your friends assigned the Oregon Liquor Control Commission (OLCC) the especially tricky job of regulating pot ads. This job is particularly tough because our state constitution contains the broadest speech protections in the nation (resulting in a naked bike ride, tons of strip clubs, and no campaign finance restrictions). So although OLCC latitude in this area may be cramped, the agency took a whack at it. They came up with a few rules you might have expected; others may surprise you.

As to the obvious, your pot ad cannot attract minors, à la Joe Camel, or promote excessive use. It also cannot promote illegal activity under Oregon law. Less obviously, the ad cannot claim that recreational weed has curative or therapeutic effects, or even “encourage the use of marijuana because of its intoxicating effect.” Did you catch that? Your ad must not promote weed use... for getting high.

The rules also prohibit showing consumption, which the agency tells me means “actual consumption.” Here we find gray areas, which often mean lawsuits but are impossible to avoid in this type of rulemaking. Clearly your ad cannot show someone hitting a joint, but what about holding one? Lit versus unlit? What about a kindly old gent on a porch with a weed patch, that may or may not be activated? Because this is often a “know it when we see it” analysis, you would be wise to clear any borderline ideas with the state before spending money.

Another notable rule provides that one cannot place an ad—radio, internet, billboard, whatever—without “reliable evidence that no more than 30 percent of the audience... is [probably] under the age of 21.” How the 30 percent metric would be gauged on many platforms is an open question, and it’s only a matter of time before someone trips on this rule and we see some legal action. As of today, Portland is lousy with pot billboards. Apparently the ones that get to stay up are far enough from schools.

Even if you follow the OLCC rules, it remains unlikely that your commercial will air on television. The Federal Communications Commission (FCC) regulates TV broadcasters, and while no FCC rule expressly prohibits televised weed ads, the agency renews licenses annually based on whether stations have served the “public interest.” Last year a stylish pot ad was scheduled on a Colorado affiliate to much anticipation, but the affiliate chickened out at the very last second.

In all, solid advice is to read the rules closely, clear any close calls, and have fun making your ad. Just don’t expect to buy a slot on KATU.